Testimony of the Federal Trade Commission Concerning H.R. 2925, and the Application of the Antitrust Laws to Health Care Provider Networks

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Mr. Chairman and members of the Committee, I am pleased to appear before you today to present the testimony of the Federal Trade Commission concerning H.R. 2925, and the application of the antitrust laws to health care provider networks.1 This testimony will discuss what the Commission believes to be the proper role of antitrust law enforcement in the health care area, and how antitrust enforcement has been vital to maintaining competitive health care markets. It will also discuss the steps we have taken and will continue to take under existing law to assure that antitrust analysis appropriately addresses the rapid changes that characterize health care markets today, and surely will in the future. It will then offer some observations on the proposed legislation under consideration by the Committee.

Introduction

We think you will find many areas of agreement between the Commission and the other witnesses who will testify today concerning the issues that are being considered by this Committee. Clearly, health care markets are undergoing rapid and far-reaching changes. New methods of coordinating the delivery and financing of health care services are emerging and competing for consumer acceptance. Health plans developed and controlled by providers of health care services can offer attractive options for consumers. Indeed, many such plans currently are operating in the market, and are doing so successfully, in conformity with current understandings of the requirements of antitrust law.

Nonetheless, the Commission agrees with the goal of this legislation: to assure that antitrust law does not impose unnecessary burdens on the development or operation of provider- directed plans that may have significant procompetitive potential.

In the past, cases brought by the Commission have declared illegal without extended review some physician networks that had a direct and substantial effect on price but lacked compensating consumer benefits that occur when there is financial integration. In adopting that position in two sets of guidelines issued jointly by the Commission and the Department of Justice and in numerous enforcement actions and advisory opinions, we indicated that other forms of efficiency might justify avoidance of per se rules in appropriate circumstances. Beginning several months ago, we initiated a review to determine whether there now are such efficiencies other than financial integration that justify rule of reason treatment. The Commission staff is actively engaged in discussions with all segments of the health care industry to continue to inform and update our antitrust analysis.

We believe it would be advisable to allow us to complete that review rather than enact H.R. 2925. A legislative directive as to what price related conduct deserves per se versus rule of reason treatment would be almost unprecedented, might allow certain clearly anticompetitive behavior to escape per se treatment, and would rigidify the development of physician networks in the sense that organizers would seek to establish networks that fall within the technical requirements of the legislation rather than those networks that insure maximum patient benefit. Indeed, the legislation could create the same chilling effect on new forms of provider networks that some say has resulted from the current guidelines -- forcing new provider arrangements into inflexible categories.

The Commission, in consultation with the Department of Justice, plans to make further guidance available to the health care industry and to this Committee at the conclusion of our own review which will be within a matter of months.

The Role of Antitrust

A key function of the antitrust laws in the operation of health care markets is to keep those markets open and competitive, so that new ways of delivering and financing health care services can compete for acceptance by purchasers. Because the development of these new arrangements depends on vigorous competition among market participants -- including providers, insurers, and others -- it is important to prevent price fixing and market allocation agreements among competitors that are not reasonably related to cooperative activity that can produce countervailing advantages to consumers.

Over the past two decades, federal antitrust enforcement has succeeded exceptionally well in facilitating the emergence of new and more efficient health care delivery systems by vigorously challenging anticompetitive efforts by health care providers to impede those innovations. This enforcement activity has been one crucial factor in the emergence of vigorous competition among health plans for the patronage of consumers and employers. The prospect of effective antitrust enforcement remains critical to the ability of the marketplace to develop better methods of responding to the demand for high-quality and cost-effective health care services. Let me emphasize that it is not the Commission's role -- and neither is it our desire -- to drive market developments in any particular direction. Rather, our goal is to deter private restraints that limit the range of options available, or raise prices, to consumers.

Although health care markets have changed dramatically, collective action by health care providers to obstruct cost- containment efforts by purchasers unfortunately remains a significant threat to consumers. In the past five years, the Commission, the Department of Justice, and state attorneys general have brought numerous enforcement actions challenging price fixing and boycotts by groups of physicians or other providers that banded together to resist innovative efforts at cost-conscious purchasing.2 When this kind of egregiously anticompetitive conduct is uncovered, antitrust enforcers have been able to condemn it quickly. These groups have often portrayed themselves as "networks," "independent practice associations," or other such potentially procompetitive ventures (even including utilization review or quality assurance programs) -- but in fact often have turned out to be nothing but sham efforts to forestall or undermine new forms of health care.

For example, last year the Commission entered into a consent agreement settling charges that a group of physicians in Danville, Virginia agreed on reimbursement rates and other terms of dealing with third-party payers, agreed to boycott payers that did not meet those terms, and thereby succeeded in preventing any managed care plan from entering the area.3 While the group held itself out as a network, the facts uncovered by the Commission's investigation indicated -- and the Commission's complaint alleged -- that the group was formed in order to block the entry of managed care. The Commonwealth of Virginia, whose state employee health plan was a victim of the boycott, entered into a joint investigation with FTC staff, and collected money damages for the harm to its employee health plan.4

Similarly, the Commission in 1994 challenged a group of surgeons in Broward County, Florida, who held themselves out as a corporation offering hospitals a host of services, including quality assurance and utilization review. But, as alleged in the Commission's complaint, the group was found to be nothing more than a vehicle for the surgeons collectively to set the price of their services. These surgeons provided trauma services in the emergency rooms of two hospitals for some time, but when the hospitals refused to accede to all of the terms they demanded, the surgeons collectively refused to deal with the hospitals. Although the group consisted of only fourteen surgeons, the walkout forced one of the hospitals to close its trauma center for a period of months, denying patients in the area access to these important lifesaving services.5

The Role of the Agencies in Providing Guidance

Beyond our role as enforcers of the antitrust laws, the Commission and the Department of Justice have long recognized the importance of providing antitrust guidance to the healthcare industry in order to facilitate competition in the market. Because of the dynamic nature of this industry, we have made unprecedented efforts to provide meaningful guidance in healthcare. Indeed, we have provided more guidance in a wider variety of forms to the healthcare industry than to any other.

For example, in 1993, after months of careful study and consultation with industry representatives, the agencies issued a set of six policy statements concerning a variety of cooperative activities of concern to healthcare providers.6 At that time, the agencies also promised that they would respond to requests for advisory opinions or business review letters concerning matters addressed by the guidelines, as well as other healthcare issues, within strict time deadlines.

While the initial healthcare guidelines were widely praised as an important first step, feedback from a variety of sources indicated a need for more detailed guidance in some of the guideline areas, as well as for guidance in additional areas. Within a year, the agencies responded with a new, expanded, set of guidelines. The 1994 Guidelines,7 which were significantly more extensive than the initial set, addressed several additional areas of concern to the healthcare industry, provided a more comprehensive explanation of how the agencies apply antitrust standards and analyze cooperative arrangements under the law, and provided numerous detailed examples concerning a variety of factual situations to demonstrate how the antitrust laws would apply. Provider networks were the subject receiving -- by far -- the most extensive elaboration and additional guidance in the revised Guidelines.

The 1994 Guidelines' treatment of potential collaboration among providers in rural areas shows how the enforcement agencies' antitrust analysis adapts to existing market conditions. Because of the scarcity of many types of providers in most rural areas, collaboration may require the participation of a proportion of competing providers that would raise serious questions in other geographic markets. Several examples in the Guidelines illustrate how antitrust analysis takes account of competitive conditions such as the need for a certain level of provider participation in order for a joint venture to operate efficiently. For example, the discussion of physician network joint ventures indicates that a hypothetical independent practice association including more than half of the general practitioners and all of the specialists practicing in a rural area would be acceptable under the facts set forth in the example.8 Similarly, the discussion of other types of provider collaboration indicates that a hypothetical joint venture among the only two hospitals in a rural area for the operation of expensive medical equipment, or for the joint operation of a specialized clinical service, would be permissible in the circumstances described.9

We also have actively met the industry's individual requests for guidance in specific factual situations. Since the Guidelines were issued in 1993, both the Commission staff and the Department of Justice have issued a large number of letters approving physician network joint ventures. The Commission staff issued 11 favorable opinions during that period, while the Department of Justice issued 18 business review letters approving proposed provider networks. Commission staff has issued only one letter that failed to approve a proposed network.

Despite the agencies' favorable treatment of most provider- sponsored networks, we appreciate that the proposed legislation and these hearings grew out of a concern that the Guidelines are too restrictive in their treatment of such networks. Chairman Hyde's statement introducing this legislation clearly underscores the point. The Commission is giving this issue serious attention in ways that will presently be described. It is important, however, to put those concerns in perspective.

First, many provider-controlled managed care plans are operating right now in the marketplace. Industry statistics indicate that 20% of all preferred provider organizations (PPOs) and 15% of all health maintenance organizations are provider- owned.10 A 1994 survey showed 9.31 million people were enrolled in provider-owned PPOs.11 Many other provider-sponsored managed care plans are being developed or planned. For example, press reports indicate that three-fourths of state medical societies are either contemplating or are actually in the process of establishing physician-sponsored networks. 12

Indeed, various knowledgeable observers have concluded that the antitrust laws cannot be said to have interfered significantly with the development of efficient physician- directed plans. For example, the American College of Physicians and the Physician Payment Review Commission have each issued recent reports that examined criticism of antitrust law and concluded that the evidence did not support the charge that provider-sponsored plans were being prevented from forming under current law.13

Second, those expressing concerns about the federal antitrust agencies' healthcare Guidelines have not criticized the cases that the agencies have brought. The enforcement actions relating to provider networks have been predicated on the presence of clearly anticompetitive conduct, not a rigid application of the per se rule. These actions demonstrate the critical importance of continuing active enforcement of the antitrust laws in health care markets in order to ensure that consumers enjoy the benefits that competition can offer.

Application of Antitrust Law to Provider Networks

The central inquiry of antitrust analysis is to understand the likely competitive effects of particular conduct. In the century since the enactment of the Sherman Act, antitrust jurisprudence has developed a number of analytical tools to guide this inquiry. The fundamental tool is called the rule of reason, under which we examine in a comprehensive fashion the purpose of an activity, the market power of the participants involved, and the likely adverse and beneficial market effects of the conduct, in an effort to reach an overall judgment on the net competitive effects of the activity.

On the basis of judicial experience, however, certain types of conduct have been found to be so inherently detrimental to competition that they are conclusively presumed to restrain competition unreasonably, and are treated as per se violations of the antitrust laws. Price fixing and market allocation agreements among competing sellers, and certain kinds of boycotts, fall into this category.14 While the per se rule needs to be applied carefully, in its proper place it continues to play an important role in antitrust enforcement. It sends a strong message to market participants that certain kinds of conduct inherently inimical to competition will not be tolerated. It establishes a bright line for all the parties in predicting the legal consequences of their behavior. In addition, by eliminating the need for proof of market power and actual market effects, the per se rule makes prosecution of such conduct less difficult, time consuming, and expensive.

In recent years, the courts have recognized a type of rule of reason analysis known as the "truncated" or "quick look" approach. In appropriate cases, the courts have been willing to dispense with the need for elaborate proof of market power regarding conduct that, while not traditionally in a per se category, nonetheless has an obvious potential to restrain competition seriously. This type of analysis can be a very important tool in dealing with efficiency arguments in some cases, without the cumbersome and very expensive proceedings that often attend extended rule of reason inquiries.15

The availability of truncated analysis, however, does not diminish the value of the per se rule in defining and deterring clearly anticompetitive conduct. The bright lines established by the per se rule provide greater predictability for market participants than truncated analysis, and thereby help reduce uncertainty about the applicability of antitrust law to certain almost invariably anticompetitive conduct. In addition, because it greatly facilitates prosecution of such conduct, the per se rule is an effective deterrent to activity that is likely to harm consumers.

Even where a provider network's operation has the potential to cause competitive harm, the conduct is not condemned as per se illegal if the restraint on competition is reasonably related ("ancillary") to the attainment of efficiencies by the network. Such situations will be evaluated under the rule of reason, not under the per se rule.

Under the Health Care Antitrust Guidelines issued by the Commission and the Department of Justice, a network joint venture that involves price agreements among otherwise competing health care providers is subject to rule of reason analysis if it involves the sharing of substantial financial risk among the participants to the venture, or if the venture creates a new product producing substantial efficiencies.16 While the language of the current Guidelines is broad enough to capture a wide range of efficiencies, the focus of the agencies' analysis has been on financial risk sharing by network participants as a means of distinguishing between cartels and legitimate, potentially procompetitive, joint ventures. Marketplace experience confirms that substantial financial risk-sharing among providers of the type discussed in the Guidelines generally encourages providers to act together to produce efficiencies that can benefit consumers. Capitation and other systems involving financial risk-sharing by providers were developed in response to payers' demands that providers of services assume some responsibility for the total expenditures incurred on behalf of a particular population of patients. These mechanisms provide direct incentives for providers, as a group, to manage the quality, setting, type, and amount of services provided by each individual member of the group in a cost-effective manner. The Guidelines, however, also state that the agencies would consider forms of economic integration that may occur in a network other than those specifically listed in the Guidelines as types of risk-sharing.17

Moreover, one theme that has emerged consistently in our discussion with employers who provide health benefits to their employees is the demand for "accountability" by providers for the quality and cost of services provided. What this means is that employers want value for their money, and they want providers to be able to demonstrate that value. Financial risk sharing is one way to structure a health benefit plan so that it encourages this kind of accountability, but it is not necessarily the only way. Indeed, health care purchasers and providers are experimenting with a variety of creative ways to promote high quality, cost- effective health care. The rapid development of improved systems for gathering, interpreting, and disseminating data about costs, services, quality, and effectiveness of treatments, for example, likely will facilitate the development of new mechanisms for evaluating the effectiveness of care rendered by particular networks or other provider groups.

As our experience with the Guidelines shows, we have been open to information suggesting that other types of arrangements may produce efficiencies that can benefit consumers. We recognize the development of new health care arrangements, bringing with them a broader range of potential efficiencies that may justify rule of reason treatment. In response, as mentioned earlier, the Bureau of Competition announced late last year an effort to gather information from many segments of the industry concerning alternative products and the efficiencies that may flow from various types of health care provider networks.18 Staff members have talked to self-insured employers, buyer coalitions, provider representatives, and other industry participants about a range of issues, including what products buyers seek in the market and the impact of existing interpretations of antitrust law on the availability of those products. This inquiry is designed to support consideration by the Commission and the Department of Justice of any additional guidance that may be appropriate. Such guidance will be most useful to the extent that it has a strong factual grounding based on the actual experience of a broad range of participants in the market.

The proper antitrust analysis of joint ventures has been explored through a variety of efforts. In addition to the aforementioned ongoing process, analysis of joint ventures was one of the topics addressed in the Commission's recently- completed Global Competition hearings. It also is a subject currently being discussed with appropriate state officials. The states have a vital interest in these matters, both as significant purchasers of health care services and as enforcers of their own antitrust laws, which would be affected by the proposed legislation. We therefore feel it is critical to obtain input from the states on this issue. We think it vital to allow these information gathering and consultation activities that already are underway to proceed over the next few months before further specific guidance is offered.

The Legislation

The legislation being considered by this Committee provides that (1) the sharing among health care providers of information relating to costs, sales, and price, among other things, for the purpose of establishing a health care provider network; and (2) the negotiation and performance of a contract for providing healthcare services under the terms of a health benefit plan, including specifically the establishments of fees, shall not be deemed per se illegal under any state or federal antitrust law. Rather, such conduct would be judged "on the basis of its reasonableness, taking into account all relevant factors affecting competition, including the effects on competition in properly defined markets." Under the proposed legislation, health care provider networks are organizations operated by and composed of providers for the purpose of providing health care services. They exhibit certain characteristics including partial funding by the members of the network, contract administration, and programs for review of quality, effectiveness, and appropriateness of treatment, and for managing utilization and coordination of care.

While we support the goals of the legislation, the Commission believes that the proposed legislation is not the best way to promote provider networks that will benefit consumers. Formally establishing certain factors in legislation may retard innovation in a rapidly changing market, by driving the market in the direction of plans that meet the statutory test, regardless of whether it makes independent business sense for ventures to be structured this way. While features identified in this bill are likely to be present in an efficient network venture, they may not be sufficient to ensure that efficiencies will be achieved.19 But more importantly, even if they were sound standards for today's market, they may well fail to measure up in just a few years' time, as health care markets continue their rapid evolution.

Our experience persuades us that health care markets are changing far too quickly to assess the potential efficiencies of provider collaboration on the basis of any single set of fixed criteria. Indeed, Commission staff's ongoing discussions show that industry participants hold divergent views on where the health care industry is headed, and different parts of the country appear to be developing in significantly different ways. What we can all agree on is that these markets will continue to change rapidly. The Commission believes that meaningful guidance based on current market realities is needed. Such guidance, however, must have sufficient flexibility to accommodate the innovative arrangements that may emerge tomorrow. A legislative solution risks discouraging innovation in a market that needs creative solutions to the challenge of containing health care costs.20

In addition, the proposed legislation presents a risk of immediate consumer harm from anticompetitive conduct. Ventures designed to meet the letter of the law, but that in fact are designed to retard rather than to further competition, would escape per se condemnation. As mentioned earlier, a number of our recent cases have involved sham networks that probably satisfied some of the factors set forth in the legislation. We suspect that such groups could easily have set up an organization that also nominally met the other criteria of H.R. 2925. Thus, the Commission is concerned about the possibility that this legislation may encourage the development of groups that threaten very real harm to competition and offer little or no efficiency benefits.

There are likely to be substantial costs to eliminating the applicability of the per se rule to all groups meeting the criteria in the proposed legislation. The per se prohibition on certain forms of highly anticompetitive conduct -- such as price fixing and market division -- is an important tool for the efficient enforcement of the antitrust laws. Created by the Supreme Court, the per se rule has functioned effectively for over half a century as an instrument of judicial economy that seeks to avoid unnecessary, complex, prolonged, and costly inquiries concerning conduct where the potential harm to competition is clear, and the conduct has, at best, only limited potential to create substantial efficiency benefits for consumers.21 These categories have evolved through judicial experience, and it has been left to enforcers and judges to adjust them when appropriate.

Legislative directives requiring application of the rule of reason as opposed to per se treatment have been extremely rare. To our knowledge, the only statute that does so is the National Cooperative Research and Production Act, which specifies that rule of reason treatment will be accorded certain types of joint ventures. That law, however, specifically excludes from its coverage pricing agreements involving the marketing of products or services.22

We all agree, it would appear, that market-based health care delivery is the most desirable alternative to comprehensive government regulation of health care provision, and that the market model depends upon active competition among delivery systems. Physicians and other health care providers are essential inputs into these competing delivery systems, and competition among providers is a necessary condition of competition among delivery systems. Provider conduct that is highly anticompetitive and does not produce countervailing efficiencies should be subject to swift and effective condemnation.

Conclusion

For the reasons discussed above, the Commission opposes enactment of H.R. 2925. The Commission intends to complete its current inquiry into these issues expeditiously, and to provide additional guidance concerning the application of the antitrust laws to provider networks within less than 6 months.23 In that process, we will not only clarify the appropriate scope of per se treatment, but will offer additional guidance as to how provider networks will be analyzed under a full or truncated rule of reason. We will of course work with the Department of Justice in this effort. It is our firm belief that this is the way for antitrust policy to evolve and adapt to changing market conditions in health care. Adoption of legislation granting favored status under the antitrust laws to certain kinds of networks risks impeding future innovative responses to market forces that could offer significant benefits to consumers.

ENDNOTES

1 This written statement represents the views of the Federal Trade Commission. My oral presentation and response to questions are my own, and do not necessarily represent the views of the Commission or any individual Commissioner.

15 An example of truncated analysis is FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986), where the Supreme Court found that dentists' collective refusal to submit x-rays to insurers amounted to "[a] concerted and effective effort to withhold (or make more costly) information desired by consumers," id. at 461-62. The Court stated: Application of the Rule of Reason to these facts is not a matter of any great difficulty. . . . [N]o elaborate industry analysis is required to demonstrate the anticompetitive character of such an agreement. . . . Absent some countervailing procompetitive virtue -- such as, for example the creation of efficiencies in the operation of the market or the provision of goods and services, . . . such an agreement limiting consumer choice by impeding the ordinary give and take of the market place . . . cannot be sustained under the Rule of Reason." Id. at 459 (citations omitted)(emphasis added).

17 "In addition, the Agencies will consider other forms of economic integration that amount to the sharing of substantial financial risk; the enumeration of . . . [capitation and fee withholds] is not meant to foreclose the possibility that substantial financial risk can be shared in other ways." Id. at 70 (4 Trade Reg. Rep. (CCH), at p. 20,788).

19 For example, the presence of credential review and utilization review programs does not necessarily indicate that the network is designed to promote competition. Some of the Commission's cases involved situations in which such programs merely served as a vehicle to thwart efforts by purchasers to introduce their own standards to achieve quality or cost- reduction goals.

20 In another context, this Committee has recognized the problems with enumerating specific criteria for antitrust analysis:
In 1984, an earlier version of the NCRA had included language attempting to provide increased specificity to the rule of reason provision. Eventually, the Committee withdrew the language because of concerns that such detailed criteria might be incomplete, therefore requiring continual refinement in the future and perhaps creating a negative inference that any factor not listed was inapplicable. . . . . The Committee recognized in 1984, as it does now, that antitrust cases require an economic consideration of highly complex facts, and that appropriate antitrust rules and presumptions evolve gradually as judicial experience with particular types of transactions accumulates. Moreover, each new concept or phrasing of a concept, introduced into a broad statutory standard might itself become the source of extended debate and uncertain application.

21 Antitrust scholars recognize the importance of the per se rule in the protection of competition. See, e.g., R. Bork, The Antitrust Paradox 267, 269 (1978) ("Price-fixing and market division agreements . . . should be illegal per se when they do not accompany a contract integration or are not capable of contributing to its efficiency." "The per se rule against naked price-fixing and market division agreements is thus justified not only on economic grounds but also because of the rule's clarity and ease of enforcement.").